RIAA Case, Capitol vs. Thomas #2, Starts Monday

NewYorkCountryLawyer writes "The RIAA's first trial verdict having been tossed out last year, the RIAA is coming back for a second round starting Monday. This time the trial will be in Minneapolis, rather than Duluth, and the defendant will have a team of pro bono lawyers on her side. But perhaps the most important new development is that this time, the 'technical' evidence garnered by MediaSentry and 'explained' by the RIAA's expert witness Doug Jacobson, will not get the free pass it got the first time around. In the 2007 trial in Capitol Records v. Thomas, no objection was made by defendant's lawyer to the MediaSentry/Doug Jacobson 'evidence' upon which the RIAA relied, and the evidence was admitted without objection. This time there will be no free ride, as defendant's tech-savvy lawyers have already filed a list of objections to the RIAA's proposed exhibits. Most notably, they attack the 'technical' materials submitted by MediaSentry and Dr. Doug Jacobson under Rule 702 of the Federal Rules of Evidence, which requires evidence based on 'scientific, technical, or other specialized knowledge' to be based on sufficient facts or data, to be the product of reliable principles and methods, and to be the result of those principles and methods having been applied reliably to the facts of the case. If the evidence fails to meet those standards, it is inadmissible. This judge has already shown acute awareness of these principles in deciding which subjects the defendant's expert could and could not address. This should be interesting."

Comments

Lawyers and geeks

[Opportunist]

I know it seems like an unlikely mix, but I've actually pondered adding a law diploma to my IT one. Today it seems like this is the license to print money...

But, when lawyers can't be tech savvy, why can't they hire tech people to explain to them where the (technical) holes in suits lie? They would save themselves a lot of work if they could basically say "your honor, my opponent based his suit on bollocks, and here's why". No judge on this planet wants to look stupid, that's why they can (at least here) call for expert witnesses (or counsels) themselves, without the need for either side to call one. Judges, though, are just like the average human: Overworked and sometimes lazy.

So they usually don't.

Re:Lawyers and geeks

[KiahZero]

It's an issue of unknown unknowns... if you don't understand technical issues, you might not see why there's an issue in the RIAA suits that would call for a technology expert.

Re:Lawyers and geeks

[drinkypoo]

It's an issue of unknown unknowns... if you don't understand technical issues, you might not see why there's an issue in the RIAA suits that would call for a technology expert.

It's obvious that we're dealing with computer technology and if you don't understand it you need to hire a computer technologist. If I'm driving my car and I hear it making a new noise that sounds like metal on metal or something, I don't need to be a rocket scientist to know that I should take it to a mechanic, because it's a car, and that's where you take a car for an explanation. Actually, I am fortunate enough to be a mechanic ("fortunate" meaning I've learned by reading books, turning wrenches, and even taking some classes) and so I usually have some idea of what is happening before I actually take my vehicle somewhere, assuming I don't just fix it myself. (Some jobs are just too stinky for me to want to deal with them.) By the same token, a lawyer who is a technologist might have some idea of what the issues are. One that does not, but who is intelligent, should know enough to consult an expert, just as they would expect that same person to consult them on an issue of law instead of charging ignorantly ahead without them.

Re:Lawyers and geeks

[Geoffrey.landis]

It's obvious that we're dealing with computer technology and if you don't understand it you need to hire a computer technologist

Unfortunately, "it's obvious" is not actually a legal argument.

You don't need to understand auto mechanics to know whether a car was stolen or not. The argument of whether, or what, you need to understand to understand whether a song was stolen or not is not, in fact, obvious.

Re:Lawyers and geeks

[digitalunity]

When there is a huge disproportion of resources(time, money and legal counsel) between parties, sometimes judges need to take a more active role in ensuring the defendants rights are not being trampled and the plaintiff isn't blowing hot air up his ass to gloss over insufficiencies in their evidence.

Face it-lawsuits between companies and individuals are typically imbalanced.

Re:Lawyers and geeks

[erroneus]

I find more often than not that lawyers, especially older male lawyers, believe they are of superior intelligence and if someone needs to explain something to them, it is somehow insulting or demeaning. Perhaps this is not limited to lawyers, but I have to say, all of the male lawyers I have known seem to reflect this pattern of not being open to new information.

But there are attorneys that specialize in certain areas. Malpractice lawyers tend to know a lot about medicine. There aren't many if any "technology" specialist lawyers and perhaps there should be.

Re:Lawyers and geeks

[drinkypoo]

This kind of sneaky wordplay put us in this situation in the first place.

That is so true. Referring to patents, trademarks, or copyrights as property is a huge mistake.

On the other hand, referring to Copyright Infringement as Theft is confusing two entirely different crimes, so it's not sneaky wordplay when you refer to it as theft, just stupidity.

Re:Lawyers and geeks

[Dutch Gun]

Hybris

I actually had to look up hybris to make sure it wasn't a simple misspelling of 'hubris'. Turns out it's a legit variation (although seemingly rarely used). I had already come up with a good joke definition for it too:

Hybris - noun. Excessive arrogance or pride in more than one field of knowledge.

Ah well...

I hope so, but...

[Weaselmancer]

This should be interesting.

This case seems like the exact type of case the RIAA avoids like the plague. Any time any of their methods are subjected to any serious scrutiny, they drop the case and run. They know any serious discovery will kill their racket.

So what's to keep them from dropping this like a radioactive potato when the bevy of tech savvy pro bono lawyers start to tear Mediasentry a new one? It would be nice if the case went on long enough for this Rule 702 thing to kill Mediasentry gathered evidence - which could hopefully be used as a precedent for other cases or requests for retrial. But at this point I'm not counting on the RIAA staying with this one long enough for even that much good to come from it.

Hopefully I'm missing something.

Re:I hope so, but...

[Weaselmancer]

Well if the evidence was collected incorrectly or illegally - then perhaps she's not guilty? Maybe that is an ideal thing to rally around. Due process. I'm terribly fond of it, myself.

Maybe it's for the best that only the police get to be the police, and not some corporate funded entity with a personal stake in the matter like Mediasoft. It would be nice for a court to make that point.

Re:I hope so, but...

[Geoffrey.landis]

What you're missing is that she's already been found guilty once. And even though Media Sentry and the RIAA suck and I hate to see them win, a lot of tech savvy people, myself included, thinks the evidence shows she's guilty.

Nope. The judge gave the jury the wrong instructions, so she's not guilty-- the verdict was thrown out-- and it doesn't matter what you think the evidence shows, since you're not on the jury.

Re:I hope so, but...

[schon]

So what's to keep them from dropping this like a radioactive potato when the bevy of tech savvy pro bono lawyers start to tear Mediasentry a new one?

Ethics. /me ducks

Re:I hope so, but...

[Daniel_Staal]

Even if she is found guilty again, if she's found guilty on good evidence while bad evidence is thrown out that will be a win: It will set some precedent for what is good and bad evidence. (Especially if the RIAA gets some egg on their face for some of the bad evidence.)

It might not help her, but it would help the next person, who can refer to this case and say: 'This judge found these pieces of evidence inadmissible for these reasons', and tell that to their judge when the RIAA tries it again.

Re:I hope so, but...

[NewYorkCountryLawyer]

in civil court, evidence obtained illegally is admissable so long as none of the parties or their counsel were involved in the crime

The fact pattern you posit would not be applicable here; both the parties and their counsel were involved.

Re:I hope so, but...

[arkhan_jg]

I would hope that she is found liable only on good evidence. Due process is important not least because some day I might find myself in that chair for some reason.

I hope that if that day comes, the evidence against me will be scrutinised for correctness, and that the conclusions the prosecution draw from it are valid, not just an unquestioned piece of paper that my accusers' expert say proves my guilt.

I would also hope that when the judge instructs the jury on the actual law, and what is needed to find me liable, he actually gives the correct instructions. Kudos to the original judge for at least realising he'd made a mistake in what the law is, and corrected it somewhat by calling for a retrial.

I would also hope my punishment if found liable would be proportional to my offence, and be focused of making good my accusers losses, rather than an incredibly excessive fine in order to discourage others.

To draw the inevitable car parallel; if I was accused of speeding, I'd hope they would have some evidence that I'd actually been speeding, that I'd be allowed to examine it, that the judge wouldn't decide that merely sitting in a car capable of doing that speed would make me guilty, and if found guilty, they wouldn't fine me $222,000 for it.

Re:Too bad it won't be streamed...

[NewYorkCountryLawyer]

Any chance that at least a transcript or audio recording will become available, eventually?

Undoubtedly a transcript will become available eventually. Here is the transcript of the first trial.

Re:Translation:

[MathFox]

I am in an easily baited mood today so I bite...

NewYorkCountyLawyer is a well known lawyer and a respected expert in the area of RIAA legislation. When I read his summary, he tells, in neutral terms, about one of the obstacles the record companies have to overcome in this second trial. I can not say how the admissibility issue will pan out and I fully agree with Ray's "This should be interesting."

You are free to have your own opinions about the RIAA and file sharing, I have mine. I would certainly appreciate if you attacked the arguments instead of the writer, it makes for a more grown-up and polite discussion.

Now I'm off to wash my mouth.

Ah, but guilty of what?

[Mathinker]

> a lot of tech savvy people, myself included, thinks the evidence shows she's guilty.

I can understand that, but you do realize that AFAIK the evidence merely shows she was (possibly) guilty of "making available" and doesn't really show that she did actual distribution (or if you want to assume that putting up the files for sharing means at least some distribution occurred, it at least doesn't show that significant numbers of copies of the works in question were distributed)?

Or am I missing something here?

Re:Ah, but guilty of what?

[tsstahl]

The evidence shows that somebody at her usual IP address "made available". IP addresses are spoofable, often temporary computer IDs. They do not identify individuals.

Standard IANAL. The legal response to 'making available' is so what? My reading of the statutes and support of armchair litigators around the net conclude that you actually have to distribute copyrighted material to run afoul of the law. If memory serves, the whole 'making available' jury instruction is what caused the mis-trial to begin with.

I printed a manual for a Grizzly table saw this morning. It is available on my end table. If that copy disappears, I'll have to print another one; woe is me. Should I be fined a gazillion dollars(US) for the disappearing printed PDF?

You can argue that there is a fundamental disconnect between the law and the way things work on the 'net today, but you can't send somebody of the civil river because of that disconnect. Granted, the past 8+ years have seen a serious erosion of the rule of law, but I least like to pay nostalgic lip service to it.

Re:Translation:

[NewYorkCountryLawyer]

Maybe that has to do with his contempt of **AA lawers and thier tactics.

I have more than enough of that to go around, but there is none of that in my summary. All I was saying in the summary was demonstrably factual. At the first trial the defendant did not have an expert witness of her own, and did not challenge the RIAA's technical evidence under Rule 702. This time she does have an expert of her own, and has already challenged the RIAA's technical evidence under Rule 702. From that I extrapolate that last time the RIAA's technical evidence got a "free ride" or a "free pass", and that this time it will not. How can anyone dispute the accuracy of those facts, or argue against the terminology "free ride" or "free pass". If the defendant does not challenge the evidence offered by the plaintiff, it goes in.

Re:Translation:

[drinkypoo]

Maybe I'm just being silly, but I prefer journalism to at least have a pretense of being unbiased.

You are, indeed, just being silly.

Would it kill NYCL to at least try to be a tad even-handed?

Probably not, but it would be phony. Isn't lying what people complain about when they talk about lawyers?

I'm not saying that's a deal breaker if it does, mind you...

I don't understand, it sounds almost like you want him to lie about how he feels even if it kills him.

Honestly, the best news source would be one that presents you with the biases of the authors of articles up front, and which provides you with competing articles with paragraph rebuttals to one another, so that you can get a feel for the different viewpoints. There are often more than two sides to a story, as well. Something like that might look a little bit like Slashdot, except with staff writers and professional editorship; personally, I often find the comments to be the most interesting and insightful part of a story (even when they're not mine.)

Thanks + question

[Mathinker]

Thanks, Ray, now I have plenty of bedtime reading!

BTW, I notice that those transcripts were posted on your blog more than a year after the trial itself. We Slashdotters are used to practically instant access to everything, so I'm curious: what takes so long for such transcripts to become available? Could the transparency of the court system improve in the future because of technological advances, or are there lots of legal issues involved which impede this?

Re:Thanks + question

[NewYorkCountryLawyer]

I notice that those transcripts were posted on your blog more than a year after the trial itself. We Slashdotters are used to practically instant access to everything, so I'm curious: what takes so long for such transcripts to become available?

Regrettably, trial transcripts are not public. Someone has to buy one. In this particular case the transcript cost more than $2000. I got some friends to contribute the money, and ordered it, but the court reporter went on maternity leave, and then there were other delays, I know not why. Eventually I returned the money to the friends. Subsequently, someone else bought the transcript, and provided me with a copy.

Re:Thanks + question

[NewYorkCountryLawyer]

Why are transcripts not "freely" available to the public?

It's the system that has evolved; the court reporters and/or court reporting agencies make their living from selling the transcripts, in order to spare taxpayers the expense. Now that, with the advent of electronic filing of litigation documents, we have seen the importance of public access, maybe the system will change for transcripts one of these days. I certainly hope it does.

Re:Thanks + question

[belmolis]

Transcripts are not free because they are not automatically produced as part of the trial process. The usual process is for a court reporter to type into a special device called a stenotype, like a typewriter but designed for greater speed. The output of this device is not normal text but a sort of mechanical equivalent of shorthand. To produce a transcript, the court reporter has to manually convert from the stenotype record to normal text. The upshot is that producing a transcript is a time-consuming and expensive process. Since most cases are not appealed, there is no reason in most cases to produce a transcript. Whoever wants a transcript, most commonly a loser wishing to appeal, has to pay (usually the court reporter - most are independent contractors, not employees of the court).

There are some alternative systems, including "voicewriting", in which the court reporter speaks into a microphone (within a mask so that she will not interfere with the proceedings) and the resulting audio is run through a speech recognition system.

What is missing from the current system is posting of transcripts once made. If, say, the loser at trial pays for a transcript, that gets her a transcript but doesn't necessarily make it available to anyone else. If you are a third party interested in the case and would also like a transcript, you may have to purchase it, at full cost, from the court reporter, unless you can get a copy from the losing party. It would be good if there was a system such that, once somebody paid to have a transcript made, it was posted for everyone to use, as well, perhaps, as a system whereby people could subscribe to a transcript, that is, where interested parties could say: "I'd like a transcript and am willing to put up to so many dollars into the kitty."

Intimidation is what these show trials are really

[Dr_Ken]

about. While nearly everyone wishes the defedent well we're also secretly thinking "I'm sure glad this isn't me in the dock" as well. So just by having the trial (win or lose) the RIAA /MPAA and their ilk keep their scare factor alive and paranoid in the public mind. And that was their intention in the first place too, eh? FUD.

evidence was accepted

[socsoc]

Ars posted a story days ago with better information than what the summary contains. The judge has already allowed the MediaSentry evidence and isn't buying most of the defense's excuses. I like NYCL a lot, but I am surprised he wasn't aware of that.

http://arstechnica.com/tech-policy/news/2009/06/thomas-judge-bars-fair-use-defense-oks-mediasentry-evidence.ars

Re:evidence was accepted

[k10quaint]

The ars article talks about MediaSentry needing a Minnesota license, fair use defense, expectation of privacy, and wiretapping laws. This summary talks about rules of evidence;
402 Irrelevance
403 Prejudice, Confusion, Waste of Time
602 Lack of Personal Knowledge
702 "Testimony by experts" (fact testimony or opinion testimony based upon "scientific, technical, or other specialized knowledge" must be based on sufficient facts or data, must be product of reliable principles and methods, and principles and methods must have been applied reliably to the facts of the case")
802 Hearsay
IANAL, but those seem quite different.

Re:evidence was accepted

[NewYorkCountryLawyer]

Ars posted a story days ago with better information than what the summary contains. The judge has already allowed the MediaSentry evidence and isn't buying most of the defense's excuses. I like NYCL a lot, but I am surprised he wasn't aware of that. http://arstechnica.com/tech-policy/news/2009/06/thomas-judge-bars-fair-use-defense-oks-mediasentry-evidence.ars

I was aware of the article and, more importantly, of the ruling to which it refers. That related solely to the motion to suppress on the ground of illegality; it had nothing to do with the Rule 702 objection.

Re:evidence was accepted

[NewYorkCountryLawyer]

The ars article talks about MediaSentry needing a Minnesota license, fair use defense, expectation of privacy, and wiretapping laws. This summary talks about rules of evidence; 402 Irrelevance 403 Prejudice, Confusion, Waste of Time 602 Lack of Personal Knowledge 702 "Testimony by experts" (fact testimony or opinion testimony based upon "scientific, technical, or other specialized knowledge" must be based on sufficient facts or data, must be product of reliable principles and methods, and principles and methods must have been applied reliably to the facts of the case") 802 Hearsay IANAL, but those seem quite different.

Yes those are quite different. The Ars article refers to this ruling, which deals only with the motion to suppress on the ground of illegality, and has nothing to do with the evidentiary objections that defendant filed.

Re:A denied motion to dismiss?

[NewYorkCountryLawyer]

Conceivably, the RIAA could move to dismiss, this is true. But it's just a motion and the court may decide that a motion to dismiss should be denied, requiring the RIAA to go through with. Sort of like saying "finish what you started."

The Court would deny a motion to dismiss "without prejudice" but would grant a motion to dismiss "with prejudice". So yes the RIAA could drop this. That would perhaps be the smart play for them, but smart doesn't seem to be their game.

Re:Um, he is phony!

[drinkypoo]

Actually the problem is not that NYCL would be lying by being even-handed, the problem is that his lack of even-handedness makes him phony, as he is giving a false iimpression of the situation, with his biases quite evident.

The writer implies, but the reader infers, and in this case the reader (you) is inferring something that is not there. Since Slashdot is not a news source, but a news, blog, and random idle shit aggregator, there is no implication of competent editorship or journalistic integrity, and it is only your failing if you assume them. You are the only one who has this problem; it is either idiotic or disingenuous.

Looks like troll-feeding hour is over; I will stop here. I can't imagine you'd have another argument worth dismissing.

Re:Um, he is phony!

[NewYorkCountryLawyer]

drinkypoo, what do you think was the giveaway about my "phony" hidden "bias"? Do you think it could have been the part of my Slashdot profile where I refer to my "doing battle with the RIAA & MPAA"? Or do you think it could have been that he saw the part on my blog where I describe the RIAA litigations as an "attempt to monopolize digital music and redefine copyright law", or my characterization of them as "sham"? Or do you think I tipped my hand by using the title "Recording Industry vs. The People" for the past 4 years?

Damn. And here I was trying so hard to keep my "bias" a secret.

It's my impression

[maroberts]

..that this case is not a matter of whether Jammie Thomas is guilty or innocent (because I quite frankly have a negative opinion on this), but what legal standards should determine guilt or innocence, and I certainly feel the current standards fall short of high quality. I feel it's a little like Miranda, who was a thoroughly disreputable guy, but who got off in the wider interests of setting up future evidence and policing standards.

Re:Um, he is phony!

[NewYorkCountryLawyer]

I'm not the only one who has ever said they'd like Slashdot better if it had a bit more integrity

Yes, you show a lot of integrity by hiding behind your "Anonymous Coward" status. Most Slashdotters have more integrity in their pinky fingers than you have in your whole body.

Never assume

[Weaselmancer]

You realize that by criticizing the RIAA evidence you are implicitly agreeing that the defendant would be financially liable were better quality evidence produced.

What's the biggest word in that sentence? WERE.

If better evidence WERE to be produced, then maybe. But so far none has, and (so far at least) we have that whole "innocent until proven guilty" thing.

And again, Mediasentry are not cops. They are not officers of the court. There are merely people with a story to tell. The defendant is another person with another story to tell.

So sure, IF better evidence were to have been collected, and IF she actually was guilty of something, and IF there was actual evidence to collect, and IF it was illegal to "make available", THEN maybe she'd be liable for some damages.

But that's a lot of IFs.

Re:Um, he is phony!

[NewYorkCountryLawyer]

Help! Moderators! I fell into the trap, and fed the troll with the above comment, and now I've been modded "Flamebait".